(A
reply to “Libertarianism, Egalitarianism and The Open Society: Why Hacohen
and Lester are both wrong about the Open Society” by Calvin Hayes[1])

I
here reply to Calvin Hayes’s welcome exposition and criticisms of Escape
from Leviathan. But I shall deal only with those aspects that I wish to
dispute or where clarification seems useful.

It is true that Escape from Leviathan “is divided into four parts:
Rationality, Liberty, Welfare and Anarchy.” But I am not quite sure what
Hayes means by adding, “based on what he terms ‘preference utility’.”
To be clear, I use a preference-utilitarian conception of welfare: we are
better off to the extent that our wants are satisfied. Preference utility is
not the basis of rationality, liberty or anarchy (though it is related to
these in various ways). For the benefit of some essentialists who insist that
want-satisfaction cannot be a type of welfare even if we want our welfare to
be judged that way, I should say that the main point is that—contrary
to the statist view—private-property anarchy maximises want-satisfaction.
However, I also defend this as a modus vivendi view of welfare that
avoids conflict (primarily, attempts to use the state aggressively to impose
competing views of welfare on people that flouts those people’s own
preferences). Though I do also defend it as the best candidate for welfare.

Hayes continues that “Lester begins with an extremely provocative quote:
‘the only thing seriously wrong with they [sic] world is politics’.” The
quotation should read, “There is only one thing that is seriously morally
wrong with the world, and that is politics” (Escape from Leviathan,
1, opening sentence; emphasis added). The misquotation leads him into trouble
later. I take this opportunity to emphasise that I meant major and general
contenders for what is morally wrong with the world, such as capitalism,
socialism, patriarchy, religion (or its absence), reckless environmental
degradation, and so forth. I did not mean, of course, that there is nothing
morally wrong with everyday acts of theft, fraud, assault, and so on (or, even
less plausibly, that the state is responsible for all of these).

I
do argue, as Hayes notes, that liberty is compatible with welfare but, just to
be clear, also with private-property anarchy (hence the title of the book).
Strictly speaking, I would not say that Escape from Leviathan
absolutely “rejects both [the] natural rights and contractarian
position[s].” Rather, following Karl Popper’s critical-rationalist
epistemology, I do not see that either of these positions can give ultimate
support (i.e., justification) to libertarianism. However, I can make some
sense of both of these in a non-justificationist way.

Hayes
regards the view that law and order can be private as “the Achilles’ heel
of [my] entire argument”. Unfortunately, he does not give any specific
criticism of this view or of my various philosophical arguments with respect
to law and order. So there is nothing substantive to which I may reply. And,
as Hayes rightly notes at the outset, my focus is on the philosophy. So the
more empirical works on this subject, such as those of Bruce Benson’s, are
cited by me without any attempt to summarise their arguments.[2]
There was simply too much relevant empirical work on too many topics to
attempt to explain them all.

It
is not so much that human welfare (in preference utilitarian terms) “entails
… anarchy” (I do not attempt to derive anarchy from welfare, which would
be a justificationist approach). Rather, I argue that there is no sound reason
to think that private-property anarchy conflicts with such welfare (which is a
critical-rationalist approach). Again, I am just clarifying here. I do not
mean to imply that Hayes’s exposition is clearly mistaken. Indeed, it is
reasonably accurate for the most part.

However, I do not argue primarily that
it is liberty (as the absence of, proactively, imposed costs) that “rules
out the pursuit of either so-called Social Justice (as in Rawls and numerous
others) or Welfare (as defined by the ‘Welfare State’ …”). Rather,
Social Justice and Welfare thus conceived are, first and foremost, in practice
incompatible with, a more plausible view of, human welfare in any case and
incidentally with interpersonal liberty too (though it is not incidental with
respect to the specific thesis I am defending).

I do not see that my anarchy
“ironically” puts me “into the company of … the truly extreme left,
the anarchists, who see the state as the instrument of the rich and privileged
to keep their power at the expense of the poor and the working class.” For
one thing, anti-statism is indubitably ‘left-wing’ in the pristine sense
of the French assembly, whence the term originated. There those on the left
were bourgeois and liberal as opposed to the right-wingers that were
aristocratic and paternalistic. For another thing, while both types of
anarchist want the state abolished, there is no serious similarity between the
two societies that the opposing types defend or predict might replace the
state. Is it ‘ironic’ that two people who hate wearing some particular
uniform do not want to wear the same alternative uniform?

Hayes is “not convinced” that I have “answered the crucial question for
anarchists (which [non-anarchist] libertarians do not face) ‘Will the
Invisible Hand work in Hobbes’ state of Nature?’” It is not crystal
clear what this “crucial question” is intended to mean. However, as
mentioned in Escape from Leviathan (e.g., 195 and note 72), game
theory, social science and biology now seem to explain convincingly how
cooperation (motivated by self-interest yet promoting the common good: also
known, following Adam Smith, as the Invisible Hand) arises
spontaneously—even among different species—as long as we have iterated
interactions.[3]
There is still some aggression and cheating but this can be considerably
ameliorated far better by competing private policing and legal systems (again,
operating as an Invisible Hand) than by the aggressive monopoly of the state.
While trade is always civilised, with both sides gaining, politics always has
victims. Without a clearer or more elaborate statement of the criticism, there
is insufficient usefully to respond further. But I did not deal with the more
empirical and economic details of these issues in Escape from Leviathan,
so made no direct attempt to answer this question, in any case.

Ultimately,
Hayes wants to “agree with the libertarians on the basic rationale for the
state viz. the Harm principle NOT Social justice is the only acceptable
rationale for state coercion.” But some libertarians, such as myself,
clearly think there is no rationale for the state. And as I explain in Escape
from Leviathan (60), harm cannot be the principle. Harm (understood as
objective damage to our person or property) must be acceptable if it, or the
risk of it, is voluntarily accepted. Only aggressively imposed harm is
unlibertarian. But aggressively imposed safety, such as a state ban on some
personally dangerous activity, is unlibertarian too. So harm as such is
irrelevant. It is the aggressive imposition of any unwanted thing that is
proscribed, though this takes considerable philosophical unpacking. And again,
‘social justice’ as advocated is unacceptable (to many libertarians as
well as me) not only because it damages liberty, understood as not being
aggressively imposed on, but because it damages the very human welfare,
rightly understood, that it is supposed to be promoting.

We are the told that “there are at least three sources of problems in the
world not due to politics, that therefore it is incorrect to claim that the
only thing seriously wrong with the world is politics. First there is Mother
Nature; second there is Moral Hazard; third there is Market Failure.” Unless
Hayes thinks Mother Nature is literally a person of some kind, I do not see
that nature can be morally at fault (as the corrected quotation requires). The
idea of Moral Hazard is that one can cause people to do more of some
undesirable thing by the very process of protecting them from the likelihood,
or consequences of, its happening. Whether a moral issue or not, how is this a
serious problem for non-political arrangements? (While the National Health
Service, for instance, is clearly a moral hazard to health because it is free
at the point of consumption irrespective of the person’s past behaviour or
any tax-extortion paid.) What supposed “Market Failure”? Again, whether a
moral issue or not, there is a wealth of literature explaining how many
so-called market failures are in reality state failures, thanks to state
interference with the creation and maintenance of private property (sundry
examples cropped up in Escape from Leviathan).
But without anything more specific from Hayes it would not be useful to
elaborate.

Finally,
Hayes asks, “How do we bring about a Utopia whether libertarian, egalitarian
or both? We can choose [Vladimir] Lenin’s method of coercion and thereby
totally compromise the ideals or [John] Lennon’s more peaceful persuasive
method and sacrifice any hope of ever realizing the Utopia.” There are
various errors in this quoted sentence and Hayes’s following text.
Anarcho-libertarianism is a Utopia in the sense that it does not currently
exist. It is not a Utopia in the sense that it has never existed (as Hayes
erroneously asserts), as shown by the examples of ancient Iceland[4]
and Ireland.[5] And, though small by
today’s standards, these were not “small communities” as Hayes supposes
any real examples must be. In any case, the historical absence of something is
hardly a proof of its impossibility. To say that we cannot have something new
is to deny progress, or even change, entirely. Neither is it a Utopia in the
sense that it will be a “perfect society,” as Hayes puts it (without crime
or defensive force, for instance). Hayes thinks the anarcho-libertarian Utopia
is “unrealizable” and that the “liberal democratic welfare state is a
lesser evil than anarchy or authoritarian regimes of either ‘right’ or
‘left’” because of “[i]mperfect people”. But, unlike some socialist
or communitarian anarchists, libertarians do not suppose that people will
become, or need to become, different because the state is abolished. Private
law and order will be necessary, and—we have many arguments to
indicate—much more efficient. The way we “bring about” this Utopia is to
keep depoliticising until there is no political aggression left. This first
requires convincing a critical mass of intellectuals that each step, not the
whole journey, is possible and desirable. Hayes appears insufficiently
familiar with what libertarians actually advocate and argue here.

[2] Such as, Bruce L. Benson, The
Enterprise of Law: Justice without the State (San Francisco: Pacific
Research Institute for Public Policy, 1990), and Bruce L. Benson, To
Serve and Protect: Privatization and Community in Criminal Justice (New
York and London: New York University Press, 1998).